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What the Tom Flanagan affair can teach us about Canada’s conservative movement

The former Tory advisor’s position on child pornography is wrong, but his former conservative allies shouldn’t have pilloried him for raising policy questions.

University of Calgary professor Tom Flanagan recently suggested that viewing child pornography is primarily an “issue of personal liberty.” He was then promptly rejected by the conservative movement he had helped to lead for 20 years. (Larry MacDougal)

By Paul Saurette

Thu., March 14, 2013

Tom Flanagan and I might look pretty similar on paper, albeit 30 years removed. We both teach political theory at Canadian universities. We both received our PhDs from American schools. We’re both convinced that academics should play a larger role in the public sphere.

Yet we deeply disagree on most philosophical and political questions. Flanagan has been in the news recently because he suggested that viewing child pornography is primarily an “issue of personal liberty” and that such acts do “not harm another person.” He is profoundly wrong on both counts and his comments have not added constructively to a debate about child pornography policy. However, given the fact that Flanagan has literally been at the epicentre of conservatism in Canada over the last 20 years, his remarks and the resulting backlash do illuminate a number of important things about the contemporary conservative movement in Canada.

Perhaps the most revealing dimension of l’affaire Flanagan is what it demonstrates about the conservative understanding of the types of “harm” that laws should regulate. On this, it is instructive that Flanagan’s mea culpa in the National Post apologized for the use of the phrase “taste in pictures,” but did not retract his assertion that viewing child pornography did not in itself harm others (even though he did acknowledge it runs some risks).

While this might seem surprising, it is less so once we examine Flanagan’s overall philosophical and political perspective. For his is, arguably, a radically individualist view that tends to assume that the only types of harmful actions that society should legislate against are those that have demonstrably direct and immediate negative repercussions on specific individuals. In his 2009 comments on child pornography, Flanagan referenced the 19th century theorist John Stuart Mill, who famously argued that even extreme positions must be debated in order for knowledge to progress and the best ideas to flourish. Mill, however, also allowed that individual freedom of expression (as well as other freedoms) could be limited if it led to direct, immediate harm to individuals. But he insisted that “generalized” harms to society were not sufficient to justify regulations. This would suggest that we shouldn’t regulate speech that generally promotes sexism and misogyny, but that we should limit speech that creates a particular harm to specific individuals, like threatening violence toward a particular woman.

Flanagan, I suspect, was trying to argue that the type of harm caused by viewing child pornography is not direct, immediate and specific enough to cross this threshold. This starkly reveals one of the fundamental weaknesses of the libertarianism: its tendency to prioritize and fetishize the idea of individual “liberty” at the cost of narrowing, in a far too extreme a way, our understanding of the nature of power, harm and the consequences of individual actions. Since the 19th century, many theorists have shown that the libertarian view badly under-estimates the indirect, but nevertheless very powerful, structural harms that private acts can create. Some have suggested, in fact, that these structural harms can be equally or more nefarious and damaging as direct acts precisely because they are much less obvious than immediate and individual coercion. This has been particularly proven, both empirically and theoretically, in relation to viewing child pornography.

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The irony, however, is that despite the denunciation of Flanagan by his erstwhile ideological companions, the contemporary Canadian conservative movement has largely accepted this view of harm and power in most policy areas. For with the demise of the old Red Tory strain, a highly individualist model of conservatism has risen to dominance (it has also invited social conservatism to come along for the ride, but mostly as a younger cousin who is expected to stay quiet when in public).

But if Canadian conservatism largely shares a highly individualist conception of harm and power, why the public shunning of Flanagan?

Part of it is tactical partisan politics. The intense message discipline that Flanagan helped pioneer and which has become the recipe for recent conservative victories has little tolerance for major gaffes on certain issues. Child pornography is certainly one of those issues for conservatives, and not only for principled reasons. The creation and use of “moral panics” is one of the key rhetorical techniques of contemporary conservative communications (although it is not limited to conservative movements). Lacking any demonstrable empirical justification, the federal conservatives employed this strategy intensely to justify their recent crime and surveillance bills – a strategy that culminated in Vic Toews’ memorable claim that people “either stand with us or with the child pornographers.” Communications whiz kids can square many a circle, but in this case it was obvious to any politico that Flanagan had said something that could not be ignored or finessed.

The roots of the vitriolic conservative disavowal of Flanagan’s comments go deeper, however. For the problem is not merely what he wanted to debate, but that he wanted to debate at all. In contrast to older versions of Canadian conservatism, in which pragmatism, compromise and discussion were recognized as both political necessities and goods in themselves, the new brand of Canadian conservatism philosophically largely derides these as signs of weakness and a lack of ideological commitment. It is not an ethos that embraces debate for debate’s sake, especially when it has political implications.

There is one final irony worth noting: after decades of waging war on “political correctness,” it was the conservatives who during the Flanagan affair played the role of the verbal police with relish. This suggests that either conservatives are not quite sure what to do with the real complexities of free speech; or that conservative appeals to free speech are not necessarily grounded in a principled commitment, but are more often than not rhetorical tools in the service of other political ends.

We shouldn’t feel sorry for Flanagan. Sometimes fortune decides that those who live by Machiavelli’s axioms fall by Machiavelli’s axioms. At the same time, he should not be pilloried and morally shamed for raising policy questions. Context matters. Flanagan was not viewing child pornography in violation of the law nor making a self-interested defence in court. He was simply considering aloud what the best policy should be. He did it poorly. And his general contention that viewing child pornography does little harm is philosophically, empirically and politically unsupportable. But it was still within the context of an academic debate, based on theoretical perspectives that are not ignorant or illogical. Thankfully, we have a wide variety of laws – whether in regard to child pornography, libel, espionage, or hate speech – that afford us important protections from many of the most harmful types of expression. But questioning whether a given law is a good thing is not the same thing as breaking it. We shouldn’t forget this distinction.

Paul Saurette is an associate professor at the School of Political Studies at the University of Ottawa. His column appears on thestar.com every second Thursday.

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